Editorial: Law on murder needs fixing

Tuesday

Jan 29, 2008 at 12:01 AMJan 29, 2008 at 5:19 PM

"... Walter Casper III is far from the only convict getting a pass. Across the state, convicted killers are walking out of prison."

A terrible miscarriage of justice is under way. A man whom a jury determined should spend a long, long time in prison for orchestrating the 1999 death of his wife by letting the family minivan hurtle into a chasm in Naples instead will probably be getting out soon.

The facts in the case have not been challenged. What has changed is the interpretation of the state’s murder law by appellate judges. Most sad and shocking of all, former Macedon resident Walter Casper III is far from the only convict getting a pass. Across the state, convicted killers are walking out of prison. At least 40 killers have already had their convictions tossed out or reduced to lesser crimes.

Nothing can be done to halt the releases. But for future cases, for killers yet to face judges, Albany must fix the state’s murder laws — even though legislators are at this point only vaguely aware of the unfolding legal chaos, which has been publicized little outside a few legal journals.

Here’s the background, elaborated upon in our two-part series that ends today.
In a series of rulings, appellate judges decided that several convicts who had appealed their cases were indeed charged with the wrong type of murder. The killers and their lawyers argued that they should have been charged with intentional murder, not murder due to depraved indifference. Depraved indifference would be, for example, firing into a crowd, not caring whether or not someone was killed. Intentional murder is ... intentional murder.

Either state of mind was sufficient for a conviction of second-degree murder — if juries had doubts about convicting on one standard, they could resort to the other.
That’s what the appellate court didn’t like.

Here’s a hard truth about American justice perhaps not understood by all Americans: When authorities “screw up” legally, the defendant must benefit. In this case, however, prosecutors had been told for decades to present juries with both options of second-degree murder and let them sort it out.

Fordham Law School Professor Abraham Abramovsky told the New York Daily News he expects the public reaction to these reversals will range from confusion to outrage, but prosecutors, not the appeals judges, should bear the blame.

“The court says: ‘You’re the prosecutor. You had all the evidence. Get it right, and if you can’t get it right, you’ll bear the consequences,’” he said.

But in defense of the prosecutors, they were playing by the rules they had been given, rules that had been condoned by high courts for decades. The atrocity is that in trying to better define the clunky law, the appellate judges made their remedy retroactive, unfair to prosecutors working under a different set of rules — rules understood by the juries — years before. Prosecutors say they have no problem with the legal logic of the appellate ruling, but bewail, as do the loved ones of the murder victims, the retroactive aspect.

So dozens of stone-cold killers — ones who intended to kill — are being put back on the streets because they were convicted of being indifferent as to whether or not they killed their victims. The panel of judges that upheld one of the initial appeals acknowledged their decision was “disturbing” because “the defendant is set free because he meant to kill his victim.”

Some of the convictions, like Casper’s, have been reduced to manslaughter and the sentences correspondingly reduced to the sort faced by drunken drivers in fatal accidents.

Think of a poor woman, a mother of two, already suspecting — correctly, as it turned out — that her husband was cheating on her. Imagine her death as her van tumbled over a cliff while her husband watched from the safety of solid ground.